Citation Nr: 25005165 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 19-34 989 DATE: April 16, 2025 ORDER Entitlement to service connection for right knee disability is denied. Entitlement to service connection for left knee disability is denied. Entitlement to service connection for right foot disability is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for a psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability did not originate in service and is not otherwise etiologically related to his active service. 2. The Veteran's left knee disability did not originate in service and is not otherwise etiologically related to his active service. 3. The Veteran's right foot disability did not originate in service and is not otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for left knee disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for service connection for right foot disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1978 to June 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs Regional Office (RO). In March 2022, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In August 2022, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain any outstanding VA treatment records from 1986 to August 2006, prison treatment records, and VA examinations. These matters were remanded again in May 2023 to obtain outstanding VA treatment records and a VA mental disorder examination. These matters were most recently remanded in August 2024 to ensure the Veteran received proper notification including development letters and a supplemental statement of the case as previous notifications had been sent to an incorrect address. With regard to the issues decided below, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 1. Entitlement to service connection for right knee disability. 2. Entitlement to service connection for left knee disability. The Veteran seeks entitlement to service connection for bilateral knee disability. Specifically, he reports injuring his bilateral knee and receiving treatment during service. See October 2016 Notice of Disagreement (NOD). He further asserts that his bilateral knee disability is etiologically related to in-service wear and tear due to his military occupational specialty (MOS) and training. See March 2022 Board Hearing Transcript. The evidence of record includes service treatment records (STRs) showing that in March 1979, the Veteran complained of bilateral knee pain due to a fall off a truck. He reported falling onto his knees and his left knee exhibited pain with bending. He was assessed with a patella contusion and treated with an ace wrap. He injured his right knee in September 1980 while playing basketball. He was assessed with a minor knee injury. He complained of a two day history of left knee pain in September 1982 due to a fall that bruised his knee. He was assessed with a muscle strain. Thereafter, an October 1985 periodic examination shows the Veteran denied having a trick or locked knee. In addition, an April 1986 Chapter 14 examination also shows that he denied having a trick or locked knee. Following active duty service, a December 1993 prison treatment record shows the Veteran complained of a 2 to 3 week history of left knee swelling and an inability to straighten his leg. He was diagnosed with tendonitis. He complained of left knee pain in July 1994. In November 1994, the Veteran fell into a hole that he was digging. He complained of left leg pain and was assessed with a left knee sprain. An X-ray study obtained a week later revealed a normal left knee. In January 1995, the Veteran complained of right knee pain and swelling, and he was diagnosed with a right knee strain. An April 1995 right knee X-ray revealed a small joint effusion. In November 1995, he reported that while driving a dump truck, the truck slid onto its side causing him to strike his right knee on the dashboard. He complained of right knee pain and swelling in February 1996. The Veteran also reported that pain had been present for several months with symptoms of swelling, reduced range of motion (ROM), locking and giving way. He was diagnosed with chondromalacia and assessed with a degenerative meniscus tear. The Veteran underwent a right knee patellar and femoral groove chondroplasty in June 1996 to treat a right meniscus tear. He underwent right knee arthroscopy in a July 1996. At that time, he denied any recent trauma. VA medical records show that in August 2006, the Veteran reported the presence of bilateral knee pain for many years and that he had been treated with ibuprofen while he was incarcerated. He also reported undergoing a knee operation while incarcerated and being told he had degenerative joint disease (DJD). A November 2006 record noted an X-ray study showing arthritis of the knee. He requested to see an orthopedist for knee pain in November 2010. Thereafter, a November 2010 VA medical record noted chronic bilateral knee pain and an assessment for DJD. A June 2011 X-ray revealed moderate bilateral knee degenerative arthritis. The Veteran underwent a VA knee examination in March 2013. He was diagnosed with bilateral DJD. The Veteran denied any injury or trauma during service but asserted that his bilateral knee disability was due to in-service wear and tear. The Veteran reported being incarcerated for 14 years, and that he fell due to a "snap" in his right knee, and that he underwent right knee surgery. The examiner noted a 1996 prison medical record showing that he underwent chondroplasty of the patellar and femoral groove for a right meniscus tear. The examiner opined that it was "less likely than not (less than 50 percent probability)" that the bilateral knee disability was etiologically related to service. In support of this opinion, the examiner noted no significant evidence of chronicity in the STRs. In October 2015, the Veteran reported having had bilateral knee pain for 5 to 6 years without any underlying injury or trauma. In his October 2016 NOD, the Veteran asserted that he had injured his bilateral knees while he was stationed in Germany when he was involved in an accident while he was driving a truck. In May 2017, a VA medical record assessed the Veteran with generalized osteoarthritis and DJD affecting his knees. A July 2018 X-ray study revealed left knee osteoarthritis. He was treated with a corticosteroid injection. At a March 2022 Board hearing, the Veteran testified that his MOS was transportation specialist, and that his duties required him to load and unload large heavy items. He also reported excessive training including ruck marches. As such, he asserted that his bilateral knee condition was caused by wear and tear during service. He also testified that his knees began bothering him during service, and that they slowly worsened over time. The Veteran underwent another VA examination in October 2022. He was diagnosed with bilateral osteoarthritis. He reported a 1979 basketball related right knee injury treated with an ace wrap and pain medication, and a 1981 left knee injury that occurred when he fell off a truck. He also reported that pain and stiffness had worsened over time. He further reported reinjuring his right knee while he was incarcerated following his active duty service. The examiner provided negative direct service nexus opinions. While noting that the STRs documented a bilateral knee injury in 1979 associated with a fall off a truck, a 1980 basketball related right knee injury, and a September 1982 left knee injury, the examiner noted that the separation examination was silent for any knee complaints or conditions. The examiner also conceded that the Veteran experienced wear and tear during service. However, such had limited probative value without objective evidence supporting a finding that the isolated thirty year old in-service knee injuries caused the current bilateral knee disabilities. Instead, the examiner noted that the first record documenting post-service treatment was 1993 record documenting a left knee complaint, and a 1996 medical record complaining of residuals of a post-service right knee injury. The remainder of the Veteran's prison treatment records were also noted as being silent for additional left knee complaints. Accordingly, the examiner noted a ten year gap in time between the Veteran's separation from service and a record documenting relevant treatment. His subsequent right knee surgery was also noted as being related to the 1996 post-service knee injury. Therefore, in consideration of the isolated in-service treatment records, the initial post-service complaints in 1993 and 1996, the acute injury during his incarceration, and initial VA treatment records documenting treatment beginning in 2006, the examiner concluded that the in-service bilateral knee incidents did not cause the current degenerative joint disease (DJD). Instead, the examiner concluded that the current bilateral knee DJD was more likely due to the naturally occurring age-related changes as opposed to service injuries occurring more than thirty years prior, and a nexus had not been established. After a review of the evidence of record, the Board finds that entitlement to service connection for a bilateral knee disability is not warranted. In making this determination, the Board finds the October 2022 VA examination report the most probative evidence of record. The examiner considered the evidence in the claims file including the Veteran's lay statements as to chronicity of his symptoms since his active duty service. The examiner further considered the Veteran's assertion that his bilateral knee disability was etiologically related to in-service wear and tear. Despite conceding wear and tear during service, based on the medical evidence the examiner opined that a nexus had not been established linking the current bilateral knee disability to the Veteran's service; specifically, due to the large gap in time between his separation from service and the first treatment record showing complaints and treatment for a knee condition. While the Board recognizes that the examiner incorrectly identified the first post-service treatment record addressing right knee complaints as being dated in 1996 versus a December 1995 date, that omission is irrelevant and harmless as it does not change the examiner's rationale which the Board finds well-supported by the evidence of record. The Board further recognizes the Veteran's lay statements as to chronicity of symptoms since service. However, a review of his treatment records show that the Veteran denied having a knee disability during his separation examination, and the first treatment record documenting left knee complaints occurs in 1993, and right knee complaints follows a reported November 1995 motor vehicle accident. Thereafter, in February 1996, he complained of symptoms of right knee pain and swelling with symptoms that had been present for only the past several months. Based on these treatment records, the Board finds that the record contains conflicting statements as to the nature and etiology of the Veteran's bilateral knee, with conflicting statements as to chronicity since service. Accordingly, the Board is unable to credit the Veteran's reporting in this regard and provides his lay statements little probative value. Further, the Veteran cannot competently provide a medical nexus opinion between his current bilateral knee disabilities and an in-service event. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Board further finds any such lay assertion to be outweighed by the VA medical opinion. The examiner has training, knowledge, and expertise which was relied on to form the opinions and well-supported and persuasive rationales were provided. Importantly, there is no competent medical evidence to the contrary. Thus, the Board finds that the third Shedden requirement has not been met, and the evidence of record is persuasively against the service connection claims for right and left knee disability. The claims are denied. 3. Entitlement to service connection for right foot disability. The Veteran seeks entitlement to service connection for a right foot disability. Specifically, he reports injuring and receiving treatment for his right foot during service. See October 2016 Notice of Disagreement (NOD). He further asserts that his bilateral knee disability is etiologically related to in-service wear and tear due to his military occupational specialty (MOS) and training. See March 2022 Board Hearing Transcript. A review of the STRs shows the Veteran complained that his feet felt like they were splitting in February 1980. He was treated with hot soaks and prescribed shoe inserts. He was treated for a minor right foot sprain in April 1980. In March 1982, he reported a four day history of right foot pain. He was assessed with athlete's foot and prescribed tinactin. Thereafter, an October 1985 periodic examination shows the Veteran denied having any foot trouble. He again denied having foot trouble during his April 1986 Chapter 14 examination. VA medical records show the Veteran reported pain located on the bottom of his feet in September 2011. In April 2012, he reported right foot pain for many years. Callouses were located along the sole of his foot which he thought needed to be trimmed. A May 2012 X-ray revealed mild right foot arthritis in the joint attaching the foot to the big toe. The Veteran underwent a VA foot examination in March 2013. He was diagnosed with bilateral porokeratosis. He reported having trouble walking during service due to shaved callouses. He also reported having pain over the bilateral plantar aspect of his feet, right greater than the left, and that he wore shoe inserts. The examiner provided a negative nexus opinion. In support of this opinion, the examiner noted in-service treatment for a bruised left foot in April 1970, a feeling that his feet were splitting in February 1980, and a minor right medial malleolus (ankle) sprain in 1980. However, the examiner noted that the current complaints mainly concerned calluses, and that the Veteran had been seen by podiatry and diagnosed with porokeratosis. He requested to be seen by podiatry in October 2013 due to a painful right foot callus. A September 2015 VA medical record also noted painful right foot callus and noted an X-ray that had revealed evidence of mild 1st MTP arthritis. In May 2017, a VA medical record assessed the Veteran with generalized osteoarthritis and DJD affecting his feet. A September 2020 VA podiatry record noted diagnoses for porokeratosis plantaris discreta and asymptomatic bilateral hallux valgus with accommodative shoes. At a March 2022 Board hearing, the Veteran testified that his MOS during service was transportation specialist, and that his duties required him to load and unload large heavy items. He also reported excessive training including ruck marches. As such, he asserted that his right foot condition, including pes planus and bunion, was due to wear and tear during service. He underwent another VA examination in October 2022. He was diagnosed with right foot hallux valgus and degenerative arthritis. The Veteran reported the onset of right foot pain during field training exercises at Ft. Hood, with right foot pain that had continued throughout and following his service. He also reported being issued orthotic inserts during service which were ineffective at relieving his pain. The examiner provided a negative direct service connection nexus opinion. In support of this opinion, the examiner recognized that the STRs documented foot complaints, issuance of foot inserts in February1980, a right foot sprain in 1980, and complaints of right foot pain in 1982. However, the examiner also noted that the Veteran's separation examination was silent for any foot complaints or conditions. The examiner also conceded in-service wear and tear but found wear and tear to have limited probative value without objective medical evidence supporting a finding that isolated in-service right foot complaints that occurred over thirty years prior caused his current DJD and hallux valgus. In this regard, the examiner noted that the initial post-service right foot complaint occurred in 2013 and concerned foot calluses. Accordingly, there existed a 27 year gap in time between separation from service and post-service right foot complaints. Therefore, given the isolated in-service right foot complaints and a near 30 years gap in time between service and the current diagnoses and treatment, the examiner found that chronicity had not been established. Instead, the current right foot disabilities were found to be more likely a result of the naturally occurring age-related changes as opposed to in-service injuries that occurred some 30 years prior, and a nexus had not been established. After a review of the evidence of record, the Board finds that entitlement to service connection for a right foot disability is not warranted. In making this determination, the Board finds the October 2022 VA examination the most probative evidence of record. The claims file and the Veteran's lay statements regarding chronicity of symptoms since active duty service and in-service wear and tear were considered. The examiner additionally conceded wear and tear during service. However, a nexus was not found to have been established linking the current right foot disability and the Veteran's active duty service. In support of this finding, the examiner noted a large gap in time between the Veteran's separation from service and the first post-service treatment record documenting right foot complaints and treatment, and, therefore, a lack of chronicity. While the Board recognizes that the examiner incorrectly identified the first VA medical record addressing right foot pain as being dated in 2013 versus September 2011, that omission is harmless as it does not change the examiner's rationale which the Board finds well-supported by the evidence of record. The Board has considered the Veteran's lay statements as to experiencing symptoms since service. In this regard, during the March 2013 VA examination, he reported having calluses shaved down during service. However, the STRs do not document treatment for calluses. Instead, the first medical record documenting treatment for calluses is an April 2012 VA medical record. Additionally, a review of separation examination shows the Veteran specifically denied having any trouble with his feet. Accordingly, the record contains conflicting lay statements in this matter and the Board is unable to credit the Veteran's reporting. As such, his lay statements as to chronicity is of little probative value. The Board further notes that the Veteran cannot competently provide a medical nexus opinion between his current right foot disability and an in-service event. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Board also finds the Veteran's lay assertions outweighed by the October 2022 VA medical opinion. The examiner has training, knowledge, and expertise which was relied on to form the medical opinion, the rationale provided is well-supported and persuasive, and there is no medical evidence to the contrary. Thus, the Board finds that the third Shedden requirement has not been met, and the evidence of record is persuasively against the service connection claim for right foot disability. The claim is denied. REASONS FOR REMAND 4. Entitlement to service connection, to include on a secondary basis, for a psychiatric disorder is remanded. As noted above, this matter was remanded in August 2022, in part, to obtain a VA examination. In August 2024, this matter was remanded again as development letters sent to the Veteran were sent to an incorrect address. This matter was additionally remanded as the record did not indicate that the Veteran had been notified of his scheduled VA examination. Following the August 2024 remand, in October 2024 VA sent the Veteran a notification letter advising him that a request had been placed to schedule an examination and that he would be notified of the date, time, and place of the examination. A November 7, 2024, Examination Scheduling Request Contention Cancellation form noted that the Veteran did not report for his scheduled examination. Thereafter, the Veteran was again notified that he would be notified of the date, time, and place of a scheduled examination in a November 19, 2024 notice letter. A December 2024 VA Form 21-2507a, Request for Physical Examination, shows that that examination was cancelled. However, the claims file contains no record showing that the Veteran had been notified of the date, time, or place of his scheduled examinations. The December 2024 VA Form 21-5207a additionally does not state why the examination was cancelled. The Board further notes that this claim was previously remanded, in part, due to notifications not being sent to the Veteran as to his scheduled VA examinations. Accordingly, a Remand is necessary to schedule the Veteran for a VA examination, and efforts should be made to unsure that he is notified of date, time, and place of his scheduled examination. 5. Entitlement to a TDIU is remanded. Lastly, the Board will defer adjudicating the claim for TDIU until the development identified above has been completed. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or identified private treatment records and associate them with the claims file. 2. Thereafter, schedule the Veteran for a VA examination regarding his claim for an acquired psychiatric disorder. The examiner should provide the following information: (a) Provide a full multiaxial diagnosis. (b) With respect to any psychiatric disorder found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not that each such psychiatric disability was caused by, or began during, active duty service. Please explain why or why not. (c) Additionally, opine as to whether it at least as likely as not that any diagnosed psychiatric disorder was (i) caused or (ii) aggravated by the Veteran's service-connected disabilities. Please explain why or why not. The examiner is asked to consider the Veteran's lay statements that his depression began while he was stationed in Germany. The examiner is asked to consider prison medical records noting depression with secondary diagnoses for dermatitis (October 1994, February 1996), arthritis and agitation of nervousness with increased pain (February 1995). The examiner is also asked to consider the Veteran's lay statements that his psychiatric disorder is secondary to his service-connected right shoulder disability (March 2022 Board Hearing). (Continued on the next page) ? 3. Thereafter, the RO should readjudicate the claims on appeal, to include the claim for a TDIU. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lamb, Christopher The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.